Reading the Tea (or Cannabis) Leaves: California’s Trend Toward Recognizing a New Protected Class of Medical Cannabis Users

Although California was one of the first states to legalize medical cannabis, and later recreational cannabis, voters and the courts have long resisted extending protections against discrimination in employment to cannabis users. In 1996, California voters passed Proposition 215, also known as the Compassionate Use Act of 1996, legalizing the use of cannabis for medical purposes, such as the treatment of anorexia, arthritis, chronic pain, and migraines. That law did not explicitly address the treatment of medical cannabis in the workplace.

In 2008, in Ross v. RagingWire Telecommunications, Inc., the Supreme Court of California held that employers were not required to accommodate medical cannabis use under the Fair Employment and Housing Act (FEHA). That decision remains the law today. Although in 2016, California voters passed Proposition 64, the Adult Use of Marijuana Act, which legalized the recreational use of cannabis by adults 21 years of age and older, that law expressly exempted employers from having to permit or accommodate employee use of cannabis.

Recently, there has been a trend by state legislatures to recognize cannabis users as a new protected class, with California being the latest state to consider the idea. On February 18, 2020, California State Assembly Member Rob Bonta introduced Assembly Bill (AB) 2355, proposing to amend the FEHA to prohibit discrimination against employees based on their use of medical cannabis. The bill would have required employers to accommodate employees currently using medical cannabis, just as employers must accommodate employees with legally prescribed medications that cause similar impairments. Although the bill is not moving forward this year, it portends what California employers should expect as early as next year.

The bill set forth the following legislative findings:

• “Sixteen states, Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, and West Virginia, have laws protecting medical cannabis patients against employment discrimination.
• No scientific evidence exists proving that medical cannabis users are substandard employees.
• Workplace drug tests have not been demonstrated safe or effective by the United States Food and Drug Administration in improving workplace safety.
• Current workplace drug testing technology, such as urine testing, discriminates against medical cannabis use that has occurred days or weeks previously because it detects cannabis metabolites, not the compounds, like THC [tetrahydrocannabinol], that have a psychoactive effect.
• There are no currently approved drug tests that determine whether an employee is impaired by cannabis, other than field sobriety tests.”

As proposed, AB 2355 would have extended the FEHA’s antidiscrimination provisions to any “qualified patient” whose physician had recommended the use of medical cannabis. It would have required an employee to notify the employer of his or her physician’s recommendation and provide a valid medical cannabis identification card at the employer’s request. If the employee  requested an accommodation, the bill would have allowed the employer to require the employee to provide a dosage or treatment regimen recommended by the employee’s physician.

AB 2355 would not have required an employer to accommodate medical cannabis use if doing so could have “reasonably cause[d] the employer to violate, lose a monetary or licensing-related benefit, or incur damages under federal law or regulations,” including Department of Transportation regulations, jeopardized federal funding for the employer under the Drug-Free Workplace Act of 1988, or caused the employer to violate federal or state laws requiring employees to be drug- and alcohol-free for legitimate safety reasons. Additionally, employers would have still had the right to discharge an employee for “using cannabis or being impaired” at the worksite or during work hours.

The provisions of AB 2355 would likely have limited an employer’s ability to refuse to hire or to discharge an employee in a non-safety–sensitive position based solely on a positive drug test. In the case of a prospective employee, a drug test result consistent with the prescribed use might not have been grounds for rescinding an offer of employment. For existing employees, positive drug tests would likely have required corroboration by additional evidence that the employee had used or was under the influence of cannabis at work to have justified discipline or employment termination. For example, under the proposed bill, the employer might have needed to have documented specific, articulable symptoms of use or impairment exhibited in the workplace (e.g., dilated pupils, red or bloodshot eyes, poor muscle coordination, delayed reaction times, lack of focus, the smell of cannabis on the person, possession of drug paraphernalia).

While a shift in California law is not expected this year, employers may want to take this opportunity to revisit their drug-free and accommodation policies and procedures by

• reviewing laws and regulations applicable to the individual workplace, as well as any federal funding sources, to determine any obligations to maintain a drug-free workplace;
• reviewing and updating position descriptions to identify specific positions where drug use could impact the health and safety of employees or others;
• training supervisors on recognizing and documenting specific, articulable symptoms of drug use and impairment in the workplace; and
• educating human resources personnel and managers on medical cannabis accommodation requirements on a state-by-state basis.